We now begin the second chapter of Tractate Bava Metzia - the chapter of 'Elu Metzios', which deals with the mitzvah of returning lost property. This chapter is particularly famous, as it is usually where children begin their study of Gemara.
The source of the mitzvah in the verses of the Torah:
The mitzvah of returning lost property is based on just a few verses in the Book of Devarim. The first verse states: "Lo sireh es shor achicha o es seyo nidachim vehisalamta mehem, hashev teshivem l'achicha" - you shall not see your brother's ox, sheep, or goat straying and wandering off, and hide yourself from them; rather, you have an obligation to return them to your brother.
Two components of the mitzvah are already included in this verse:
A negative commandment - "vehisalamta": it is forbidden to see the lost item and pretend not to have seen it, to close your eyes and turn your gaze away.
A positive commandment - "hashev teshivem l'achicha": there is an obligation to return the lost item to its owner, the person who lost it.
The verses continue: "Ve'im lo karov achicha elecha velo yedasto, va'asafto el toch beisecha, vehaya imcha ad drosh achicha oso vahashevoso lo" - if the owner is not nearby, or the finder does not know at all whose lost property it is, he should gather it into his house and safeguard it until the owner comes to seek it, and then he shall return it to him.
The Gemara deduces from this: it is obvious that the finder cannot return the lost property until the owner comes and claims it, so what then does the "seeking" add? Rather, the seeking is on the part of the finder: he must investigate and examine the claimant, asking him to identify the object and verify that it is indeed his. This is the beginning of the topic of 'simanim' (identifying marks) - providing distinguishing marks to verify the ownership of the one claiming to have lost it.
The third verse adds: "Vechein ta'aseh lachamoro, vechein ta'aseh lesimlaso, vechein ta'aseh lechol avedas achicha asher tovad mimenu umetzasah, lo tuchal lehisa'alem" - so shall you do for his donkey, for his garment, and for any lost article of your brother; you are not permitted to pretend you did not see it and evade the matter, but rather you are obligated to take care of it.
It is worth noting the multiple inclusions in the verse: not only do the donkey and the garment seem superfluous, but once the verse states "any lost article of your brother", we find that even the mention of the ox and the sheep in the previous verses is redundant. From here we learn that each of these additional cases requires a special exegesis, teaching why it was necessary to include it.
We therefore find that one who finds an object belonging to another Jew is obligated to return it, and if he does not do so, he transgresses both a positive commandment and a negative commandment. Furthermore, if he took the object and kept it for himself, he transgresses a third prohibition - the prohibition of theft, since he took something that is not his.
The foundation of the chapter - yei'ush and hefker:
As long as the owner maintains his ownership over the object, there is an obligation to return it to him. However, if he has lost hope of finding it - which is what is called 'yei'ush' - this is halachically equivalent to declaring the object ownerless, and from then on the object is hefker, and the finder is permitted to acquire it for himself.
The question is, therefore: I found an object - may I keep it? The answer depends on whether the object still has an owner, which is determined by whether the owner despaired of finding it and relinquished ownership (hefker). Similarly, there are cases where it is clear that he relinquished it intentionally - an "intentional loss" (aveidah mida'as) - where he gave up on the object and threw it away on purpose, and in those cases too, the finder may acquire it.
The Function of an Identifying Mark:
How can one know if the owner has despaired and relinquished ownership? The assumption is that if the object has an identifying mark (siman), a distinguishing feature that would allow the loser to spread word around the city - "I lost such-and-such, have you seen it? It has this-and-this mark" - he will not despair quickly. Consequently, the finder must assume that the loser will still come to claim his object, and he is not permitted to keep it for himself, but rather is bound by the mitzvah of returning lost objects (hashavas aveidah).
On the other hand, if the object does not have an identifying mark, there is no way for the loser to get it back, and therefore he despairs immediately, the object becomes ownerless (hefker), and the finder acquires it for himself.
Similarly, if the finder knows for a certainty that the loser has despaired: for example, one who stands at the edge of a boat and sees his friend drop his wallet into the water and exclaim, "Goodbye, wallet, I will never see you again" - he has despaired and relinquished his ownership, and the finder may dive down, bring up the wallet and keep it for himself, even though he knows very well who the loser is, because he gave up his ownership and there is no mitzvah to return it to him. But as long as it is not known whether he despaired, one must assume that he did not despair, and either return the object to him or search for him, in order to fulfill the mitzvah of returning a lost object.
Unconscious Despair (Yeush Shelo Mida'as):
One central topic, which can be called the conceptual foundation (lomdus), arises right at the beginning of the chapter and is interwoven throughout it: what is the halachah regarding a person who would certainly despair the moment he found out about his loss, but does not yet know that he lost it? Is the object considered ownerless or not? This is "yeush shelo mida'as" - unconscious despair - a person whose object has already been lost, but he has not yet become aware of it.
There are two sides to the matter:
If "yeush shelo mida'as is considered yeush" - one who will certainly despair once he finds out, it is as if he has already despaired and given up hope, and the finder may acquire the object.
If "yeush shelo mida'as is not considered yeush" - this does not count, and until he knows for certain that he lost it he did not have the ability to despair, and therefore the object is still his, and the finder must return it. And since under normal circumstances the finder never knows if the owner has become aware of the loss, he will have to assume that he did not despair, and consequently the obligation to return it falls upon him.
This dispute is an argument between Rava and Abaye: Rava holds that it is considered yeush, meaning that if the object was lost - even if the owner does not yet know - the finder may acquire it, provided it is an item that the loser will despair of once he finds out. And Abaye says that it is not considered yeush, and it is not sufficient until he actually knows that he lost it, and therefore the finder is not permitted to keep it for himself.
The halachah throughout the entire Torah follows Rava and not Abaye, except that there are six exceptions - known by the acronym Ya'al Kagam - and this is one of them, where the halachah follows Abaye. Therefore, an object that was lost and its owner does not yet know about it, even though he will certainly despair when he discovers it - as long as he has not actually despaired, the finder is not permitted to acquire it. And if he took it, it belongs to the owner and he must return it; and even if the owner subsequently found out and despaired, since he took it while the object was still in the owner's possession - he must return it. This is the final halachah.
The First Mishnah:
In light of this, we will begin with the first Mishnah: "Eilu metziyos shelo ve'eilu chayav lehachriz" - Which found items may the finder keep for himself, and which of them must he announce and proclaim that he found them, in order to search for the owners and fulfill the mitzvah of returning lost property. Our Mishnah deals with the types of items that one is permitted to keep, while Mishnah 2 will deal with items that one must announce in order to find their true owners.
"Matza peiros mefuzarin" - The fact that they are scattered teaches that they fell from a person and were not placed there intentionally. Since they fell and he is unaware of it, he will not return to take them. Furthermore, fruit is agricultural produce, and all wheat or apples look alike and have no identifying mark. Therefore, the one who lost them will not be able to get them back, and the finder acquires them.
"Maos mefuzaros" - The same applies to scattered coins: A person does not leave them like this, but rather they fell and were lost from him, and the finder acquires them.
Here we must ask: We said that the halachah follows Abaye - but how does Abaye know that the person already knows he lost his money? Perhaps it fell from him and he is not yet aware of it, so how can the finder take it? Therefore, in each of these cases, Abaye will have to say that there is a reason why we can assume with certainty that the one who lost the item already knows about his loss and has already despaired.
In our case, which is the classic case regarding money, Abaye answers: A person is prone to check his pocket at all times to verify how much money is in it. Therefore, if the money fell, he will discover it quickly. We can thus assume that he has already discovered that he lost his money. Since it fell in a place unknown to him and these are scattered coins that have no identifying mark, he certainly has no expectation of getting them back, and the finder acquires them. Similarly, according to Abaye and the halachah, we must say this regarding all the cases in our Mishnah: We are dealing with items of value that a person checks frequently, or that are very heavy so that when they fall, he feels it immediately.
"Kerichos birshus harabim" - Small sheaves, such as bundles of wheat, left in the public domain. The Bartenura writes: "And even if they had an identifying mark" - even if they have an identifying feature, it is not enough, and the finder acquires them. The reason: Since they fell in the public domain, the one who lost them assumes that even if he left them in a known place, they have already been moved from there and he has no identifying location. Furthermore, the identifying knot he tied in them has slipped and come undone due to the foot traffic in the public domain, and therefore he despairs. (Rava and Rabbah argue on this point, but this is how the Bartenura explains it, and we will rely on this for now.)
"Iggulei develah" - In the times of the Mishnah and the Talmud, this was how they stored figs, and sometimes it can be seen even today: They dry the figs and press them into a standard mold, like a brick of dried figs, and cut pieces from it with a knife. Since the shape and size are uniform, and the circle looks like any other circle of pressed figs, the one who lost it assumes he will not get it back, as it has no identifying mark.
"Kikar shel nachtom" - The same applies to bread that comes from a baker: Since all baker's loaves look identical, there is no reason to assume the one who lost it will find it again, for it has no identifying mark.
"Machruzos shel dagim" - Fish strung on a rope. The assumption is that the fish are strung in a standard way, in the usual amount customary for everyone, and they have no identifying marks. Since this is the normal way and there is nothing unique or unusual about the string, there is no identifying mark here.
"Chatichos shel basar" - The halachah assumes that there is no identifying significance in the way it is cut, and these are merely pieces of meat without any identifying feature. Therefore, it is lost to its owner, and the finder may keep it.
"Gizei tzemer habaos mimedinatan" - Wool shorn from sheep in the usual manner customary in that time and place. Since it was done routinely and has nothing unusual about it, it has no identifying mark.
"Anitzei pishtan" - Bundles of flax stalks that have not yet been spun. Here too, it is a regular item processed in a regular way, and it has no identifying mark.
"Uleshonos shel argaman" - Wool that was combed and turned into a long, thin piece of wool, somewhat shapeless, which is called a 'tongue' due to its shape. Although this wool is dyed with argaman, which is a very expensive purple dye, this is the standard shape of unprocessed wool, and many tongues of purple wool look alike and are found in abundance - and therefore this does not constitute an identifying mark.
In all these cases, the Mishnah rules "harei eilu shelo" - the finder acquires them for himself, because the one who lost them despairs immediately upon learning of the loss. And all of this is "divrei Rabbi Meir" - the words of Rabbi Meir, and this is also the halachah.
The approach of Rabbi Yehudah - "Kol sheyesh bo shinnui":
Rabbi Yehudah argues on this point and says: "Kol sheyesh bo shinnui chayav lehachriz" - If there is something unusual in one of the listed items, there is an obligation to announce it. As the Mishnah phrases it: "Keitzad? Matza iggul uvesocho cheres, kikar uvesocho maos" - How so? He found a circle of pressed figs with a piece of earthenware inside it, or a regular baker's loaf of bread with a coin inside it. The point is that this is the only loaf in the city that has a coin in it, and this is the only circle of pressed figs that has a piece of earthenware in it, and this constitutes an identifying mark.
However, Rabbi Meir, who disagrees, holds that the one who lost the item presumably did not know there was a coin inside the loaf or a piece of earthenware inside the pressed figs, for if he had known, he would not have left them there. Since this happened by mistake and he is unaware of it, even though it would have been an identifying mark had he known, he is unable to provide it as an identifying mark, and therefore the finder may keep it for himself. Rabbi Yehudah, on the other hand, holds that even though it happened by mistake, we must assume he might have known and will be able to claim it with an identifying mark, and therefore one must announce it and may not keep it for himself.
This dispute between Rabbi Meir and Rabbi Yehudah carries over to practical halachah: The Shulchan Aruch rules that he may not keep it but must announce it - in accordance with Rabbi Yehudah; whereas the Rema is lenient and permits keeping it - in accordance with Rabbi Meir.
"Kelei anporya" - Rabbi Shimon ben Elazar:
In the final section of the Mishnah it is stated: "Rabbi Shimon ben Elazar omer: Kol kelei anporya eino chayav lehachriz" - Rabbi Shimon ben Elazar says: Any brand-new vessel that has never been used, there is no obligation to announce it.
To understand this, we must first provide some background. Most utensils have a distinguishing mark, as they are usually handmade and see regular use: a piece breaks off, a stain gets stuck to them, a person writes his name on them; and even when they emerge from the craftsman's hands, they are not completely identical to one another, and therefore a person can identify his own. Even though they all look more or less similar, they are not exactly identical, and the owner recognizes his item.
From here we have two separate laws:
The law of a distinguishing mark: An item that lacks a distinguishing mark which the loser can explicitly specify - he cannot claim it back.
The law of visual recognition: One who has reached a certain level of a Torah scholar is trusted to recognize his belongings. Even though we cannot say beforehand exactly how he recognizes the object and what makes it unique, and therefore we cannot provide the mark in advance, nevertheless, if he says he knows the item is his - he is believed. As to who in our times reaches this level of credibility, if anyone at all, that is a question; but the Mishnah assumes that such a reality exists.
This is similar to hundreds of identical black hats placed on a shelf in a large yeshivah, and everyone knows which hat is his and recognizes it, even though he is unable to say exactly how it differs from the others. And regarding a person who is a Torah scholar - he is believed.
Nevertheless, Rabbi Shimon ben Elazar says: If the item he found looks like an "anpurya" utensil - and this term is expounded as a combination of the words "ein purya," meaning that it has nothing unique about it, namely, a brand-new utensil - then even if it belonged to a Torah scholar, it is like an item that just came out of the box. And even though he will recognize his hat in the future, right now it looks like any other hat, since it has not yet been used or looks as if it has not been used. Therefore, even if he found it in a place frequented by Torah scholars, and even near the entrance of a large yeshivah - how would a person know that this hat or this book is his? And therefore, he may keep it for himself without announcing it.
In this, he disagrees with the opinions that maintain that in any case, if he found it in a place frequented by Torah scholars who reach this level of credibility - he is obligated to announce it. And the halachah follows Rabbi Shimon ben Elazar: With completely new utensils, which seemingly have no distinguishing mark at all, the finder acquires them for himself, even if he found them in a place frequented by Torah scholars of a level where they would be trusted to say that they recognize their belongings.